Why Chief Justice Roberts Took a Theoretical Approach

From the founding of the American Republic, the nation has been continually divided over a basic issue: What powers are vested in the federal government and what are the limitations on the central government’s reach? This has been the yin and yang of American constitutionalism.

The pundits will wax endlessly on the political nature of the nation’s highest court and how the Chief Justice must have swallowed hard to save a statute that pushed federal power to previously unchartered territory. Requiring citizens to do business with a private company is extraordinary and likely was a result that the Chief Justice found less than intuitively or viscerally congenial.

What saved the mandate was the Chief Justice’s commitment to the court as an institution that should exercise restraint in the course of reviewing Congressional assertions of power. This is part of the high court’s canon. That is the enduring legacy of John Marshall, who the incumbent chief has openly praised in lavish fashion.

The Chief Justice’s usual comrades were vigorously in dissent and must have found their leader’s theoretical approach baffling, even mystifying. But that is inside baseball and ultimately doesn’t count. What matters, now that the dust has settled, is that John Glover Roberts Jr. is in command and that the debate over the wisdom of President Obama’s legislative centerpiece returns to the legislative arena. That will be satisfying indeed to the Hoosier who sits in the center seat once occupied by his judicial hero, John Marshall.